Superior Court of Justice – Ontario
Family Court
COURT FILE NO.: FC346/19-1 DATE: November 23, 2022
RE: Michaela Anne Wong, Applicant AND: Edward Raymond Thompson, Respondent
BEFORE: SAH J.
COUNSEL: Kaila Meddoui for the Applicant
HEARD: October 25, 26, 27, 2022
ATTENDANCES: Applicant and Applicant’s counsel
REASONS FOR JUDGMENT
[1] This matter was called to trial during the October 2022 trial sittings. Upon receiving notice from the trial coordinator, the Respondent advised he would not be in attendance.
[2] In response, the trial coordinator advised she could not guarantee how the judge would proceed. The trial coordinator advised the Respondent that the trial may proceed in his absence.
[3] The morning of the first day of trial, the Respondent wrote to the trial coordinator indicating his understanding of the above.
[4] At the commencement of trial, the Respondent was paged. He did not attend. On the second and third days of trial, the Respondent was once again paged, and he did not attend.
[5] The Trial Scheduling Endorsement form dated March 8, 2022 clearly states that if a party does not attend trial, an order may be made in the party’s absence.
[6] The Respondent failed to comply with the terms of the Trial Scheduling Endorsement form, which required him to file an updated financial statement and documentary evidence to be relied on at trial. He also did not file an updated form 35.1 affidavit or form 35.1A affidavit.
[7] The Respondent did not participate in trial readiness court, which took place on October 4, 2022.
[8] I have considered the primary objectives of the Family Law Rules, O Reg 114/99 (“Rules”), which require cases to proceed in a manner that is fair to all parties, saving time and expense, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to a case while considering the need to give resources to other cases: see Rules, rr. 2(2) and (3).
[9] The court is required to apply the rules to promote the primary objectives: Rules, r. 2(4).
[10] I find that the Respondent had the opportunity to participate in these proceedings. He understands the consequence of his non-participation at trial, he knows or ought to know the consequence of his failure to comply with the Rules. I permitted the trial to proceed based on the Applicant’s evidence alone.
[11] What follows are my reasons for trial.
[12] The parties began cohabitating in 2010 and separated with no reasonable prospect of reconciliation on November 24, 2018.
[13] Two children were born from their union, O., born March, and H., born June (collectively referred to as “the children”).
[14] From the parties’ separation in November 2018 up to September 2022, the children primarily resided with the Applicant.
[15] On September 14, 2020, the Respondent, without the Applicant’s knowledge or consent, picked H. up from daycare in the middle of the day. He refused to return H. to the Applicant that evening.
[16] The Applicant attended at the Respondent’s home to pick H. up, and discussions between the parties progressed to the point that the Respondent began threatening to involve the police. The Applicant did not wish for the children to witness police involvement and left the Respondent’s home. O. remained with the Respondent at his insistence.
[17] The Respondent then presented the Applicant with a separation agreement, demanding that she sign it. The agreement placed the children in his primary care and granted the Applicant specified time with them. The Applicant did not sign the agreement.
[18] The Respondent withheld the children from September 14, 2020 to October 2, 2020.
[19] Meanwhile, the Applicant brought an urgent motion seeking the return of the children.
[20] When both parties were represented by counsel, they negotiated a week on/week off schedule, with exchanges to occur Friday after school.
[21] The parties agreed to other relief regarding childcare, the 2020 holiday schedule, communication, and child support. The parties’ agreement was then included in a Consent Endorsement Request, signed by the parties on October 6, 2020. The Consent Endorsement Request was incorporated into a temporary order made by me on December 16, 2020.
Position of the Parties
The Applicant
[22] At trial, the Applicant seeks:
- sole decision-making responsibility for the children;
- the Respondent’s parenting time to be in her discretion;
- child support payable pursuant to the most current income information provided by the Respondent;
- child support arrears fixed in the sum of $3,129.50;
- the proportionate sharing of s. 7 expenses, which include medical and health expenses not covered by health insurance, child costs including summer camp, and before and after-school care, educational tutoring, and postsecondary expenses;
- payment of retroactive s. 7 expenses in the sum of $3,370.14;
- a requirement that the Respondent add the children to any medical and health benefits available to him through his employer;
- that the parties communicate using the Talking Parents application, unless there is an emergency; and,
- several orders regarding maintaining civil and child-focused communication between the parties.
The Respondent
[23] The Respondent did not participate at trial notwithstanding being provided notice that the trial was to proceed and understanding the consequences of his failure to attend. Only the evidence of the Applicant shall be considered.
Issues
[24] The issues to be determined include:
- What parenting time regime is in the children’s best interests?
- What decision-making regime is in the children’s best interests?
- Are child support arrears (table and s. 7) owed to the Applicant and, if so, in what amount?
- What income should be used for ongoing support, and what obligations flow?
Decision-Making
[25] The undisputed evidence at trial supports an order granting the Applicant sole decision-making responsibility. I make this finding based on the following.
The children’s need for stability on decision-making – s. 24(3)(a) CLRA
[26] O. has both educational and medical needs which require regular decision-making. For example, her school is providing her with reading and writing support and she is in the process of having an Individual Education Plan in place. O.’s medical needs includes a diagnosis of asthma for which she requires an inhaler.[^1]
[27] Similarly, H. has medical needs which includes a milk protein allergy and asthma, for which he uses an inhaler.[^2]
[28] Their needs will require decision-making on an ongoing basis. As further particularized below, the Respondent has not always made decisions consistent with the best interests of the children. Further, the evidence supports that the Respondent has an inability to communicate on simple decisions in a child-focused and non-confrontational manner.
[29] The evidence supports that the Applicant has been primarily responsible for the children’s care.
[30] The Applicant has always made decisions for their children and historically, the arrangement was encouraged by the Respondent. As a result, there is a bond, affection, and emotional ties between the children and the Applicant.
[31] The evidence also supports that the Applicant has been responsible for arranging and, for the most part, taking the children to all medical and dental appointments, and communicating with the children's day care or school.
[32] On the occasions that the Respondent did assist by taking O. to the optometrist, he did not act in a child-focused manner, as outlined below.
Ability and willingness to communicate and cooperate – s. 24(3)(i) CLRA
[33] The Applicant also testified that the parties were not on the same page as it related to the children’s education and care during the pandemic. According to the Applicant, the Respondent believes that COVID-19 was a conspiracy fabricated by the government. He did not believe in wearing masks and stated that the Applicant was not to allow O. to wear a mask. The Respondent was adamant that O. be home-schooled indefinitely in September 2020.
[34] At the time, the Applicant had just started a job with London Health Sciences Centre. Many disagreements took place regarding O.’s attendance at school. The Respondent at one point threatened to never speak to the Applicant or the children again if the Applicant enrolled O. in school.
[35] The Applicant felt threatened and bullied and even considered quitting her job to home-school the children, even though she believed that it was best for them to attend school.
[36] When the Applicant finally told the Respondent that the children would be returning to day care and school, he became very angry and several text messages followed wherein the Respondent threatened to involve the police about having the children in his care.
[37] The Respondent proceeded to attend the Applicant’s home and sat in the driveway, in his car, from 8:45 p.m. to 11:30 p.m., honking the horn, waiting for the Applicant to come outside. The Applicant was upset and scared. The Respondent eventually left.
[38] Under paragraph 15 of my December 2020 order, the parties were to communicate with each other only regarding the children and in a brief, informative, respectful, factual, and friendly manner.
[39] Despite this, the Respondent has demonstrated an unwillingness to communicate and cooperate on matters affecting the children.
[40] For example, in late August 2021, the Applicant corresponded with the Respondent to advise him of a meet-and-greet at school. She asked the Respondent if she could pick up H. to take him or if she could meet them at the school. In response, the Respondent simply stated “no”.[^3]
[41] Another example of the Respondent’s inability to cooperate and communicate with the Applicant pertaining to issues involving the children relates to H.’s allergy test appointment.
[42] In late January 2021, the Applicant wrote to the Respondent requesting information that he may wish to share for the allergy appointment and asking if he had been introducing any new foods.[^4]
[43] The Respondent refused to engage in conversation and the Applicant was required to probe further.
[44] After the appointment, the Applicant advised the Respondent of the results and inquired if they should try and arrange a plan to introduce H. to certain cold dairy products. The Respondent did not wish to work collaboratively to arrange a plan, instead indicating that he already has introduced dairy products in his home.
[45] Further, the Applicant advised the Respondent that O. had mild eczema and she purchased over-the-counter cream that she would send with her, requesting that it go back and forth between them. The Respondent advised that he would buy his own and that he did not need any more “headaches” from the Applicant over “petty things”.
[46] It is clear that the Applicant wished to work collaboratively with the Respondent on introducing cold dairy, but the Respondent was not interested or willing to communicate in a fashion that was child-centred, instead seeking to denigrate the Applicant.
[47] Further, the Applicant testified that O.’s dental treatment was delayed due to the Respondent’s inability to communicate with her effectively and efficiently.
[48] The Respondent’s unwillingness or inability to communicate in a child focused and civil manner with the Applicant is not found to be in their children's best interest.
Ability and willingness to meet the needs of the children – s.24(3)(h) CLRA
[49] On one occasion, the Respondent took O. to the optometrist, and the appointment never took place. The Applicant testified that she discovered that, upon arrival, O. was not wearing a mask and was asked by the staff to put one on. In response, the Respondent confronted the staff about the sign on the door stating that children under the age of 12 had to wear masks. The evidentiary record supports that the Respondent was confrontational and impatient after this encounter. He left with O. after her eyes had been dilated, without the completion of the eye exam. He later informed the Applicant that they should no longer use that optometrist for the children.[^5]
[50] According to the optometrist records, O. has a hard time seeing the smartboard at school. She sometimes can't copy down words correctly. The records also reveal that O. reports that she has a hard time reading, and that the Applicant was not sure if this was an issue or not, but thought it was best to have her eyes checked.
[51] Indeed, it would have been in O.’s best interest to have her eyes checked. Instead, the Respondent behaved unreasonably in the circumstance, calling the staff hypocrites, and not allowing O. to complete the eye exam.
[52] In addition, the evidence supports that the Respondent has been unable to attend to the needs of the children's education. The Applicant testified that the children missed a significant amount of school when in the Respondent’s care, and this was supported by the evidence, specifically O.’s and H.’s elementary provincial report cards.[^6]
[53] When school was online in January 2021 due to the pandemic, the Respondent did not allow the children to participate. The Applicant corresponded with the Respondent on this issue, specifically asking if O. was in class online. The Respondent advised that she was not, and that he had informed the school of such. He claimed that they did not agree on online classes and found it to be very unstable for O. and her education. He did not facilitate her online learning.[^7]
[54] All of the foregoing demonstrates an inability of the Respondent to put the needs of the child before his own views and opinions.
Family violence – s. 24(3)(j)
[55] The Applicant gave evidence that she was a victim of family violence. Most of the violence was emotional and psychological. The Applicant described the Respondent’s behaviour to be controlling and coercive.
[56] The Applicant testified that while they were separated but living under the same roof, the Respondent engaged in a romantic relationship with someone whom he impregnated. This psychologically affected the Applicant.
[57] Further, the Respondent, in a fit of anger, grabbed two paintings that the Applicant completed from a paint night and broke them into pieces on the floor. On this occasion, the Respondent also threw two dining room chairs while in front of the children, causing them to cry hysterically.
[58] The Applicant testified that the Respondent historically used the children to control the Applicant and keep her in the relationship.
[59] The Respondent often swore at the Applicant in front of the children.
[60] The Respondent’s controlling and coercive behaviour caused the Applicant to withdraw an application that she commenced in or around March 2019. After receiving the initial pleadings, the Respondent was angry with the Applicant and began texting her, requesting that they resume their relationship notwithstanding the relationship he had with a woman living in their basement. The harassing messages from the Respondent persisted to the point that the Applicant withdrew her litigation and reconciled with the Applicant.
[61] Tendered as evidence at trial was a letter from the London Abused Women’s Centre dated February 15, 2022, advising that the Applicant had been a client of the centre since April 2019. This centre is a feminist organisation that supports and advocates for personal, social, and political change directed at ending violence against women. It is an agency that supports those who are or who have been abused by a current or former intimate partner.[^8]
[62] I accept the Applicant’s unchallenged evidence that she is a victim of family violence. This is an important consideration when determining whether a cooperative parenting arrangement is appropriate. In this case, it is not.
[63] Accordingly, the order issued shall provide the Applicant with sole decision-making responsibility of the children.
Parenting Time
[64] The undisputed evidence at trial supports an order that it is in the children’s best interest for their primary residence to remain with the Applicant. I will not make an order relating to the Respondent’s parenting time.
[65] Section 21(4) of the CLRA requires any person seeking a parenting time order to submit an affidavit, in the form specified for the purpose by the rules of court.
[66] The Respondent’s last sworn form 35.1 affidavit is dated December 5, 2020. There is a recent and ongoing investigation with the Children's Aid Society of London and Middlesex in relation to his conduct.
[67] In the absence of updated form 35.1 and a form 35.1A affidavits from the Respondent, the court is precluded from making an order for the Respondent’s parenting time.
[68] I make the following findings on parenting time.
The children’s need for stability on parenting time – s. 24(3)(a) CLRA
[69] The record reveals the children have been subject to instability since their parents’ separation. They were first in their mother’s care, followed by time in the care of the father alone, a shared parenting regime, time with the mother again, back to a shared parenting regime, and most recently time in their mother’s care alone.
[70] The full extent of this instability is outlined when I reviewed the evidence regarding history of care below.
[71] Given their ages and the history of care, a stable routine is in their best interest.
[72] Based on the evidence further set out below, I conclude that the Applicant has and can continue to provide the children with stability while the Respondent has demonstrated an inability to do so.
Nature and Strength of the children’s relationship with each parent. – s. 24(3)(b) CLRA
[73] There is no evidence to suggest that the Applicant and the children do not have a close and strong bond.
[74] The Applicant not only cares for the children but also ensures that all of their needs are met including their educational, extracurricular, and medical and health needs.
[75] While no evidence was tendered regarding the nature of the Respondent’s relationship with the children, I can only infer – based on the evidence presented – that it was one fraught with instability.
[76] I make this finding based on the number of times the children have had their parenting schedule changed due to the Respondent’s action or inaction, and several instances where I have concluded that the Respondent did not act in a child-focused manner. This not only includes the trip to the optometrist but also a more recent event which led to a change in a longstanding parenting schedule.
Willingness to support the development & maintenance of the children’s relationship with the other – s. 24(3)(c) CLRA
[77] The Applicant has encouraged and facilitated the Respondent’s relationship with the children since they separated in 2018.
[78] She has encouraged the Respondent to participate at school meet-and-greets, has kept him advised of all of the children's extracurricular activities, informed him of their medical appointments and the outcome of same.
[79] She has done this despite the Respondent’s many unilateral decisions to limit her parenting time, the fluctuation of his mood and temperament, and while processing the abuse that she faced with they were in a relationship.
[80] The Applicant described their relationship to be negative. She described that it contained an abnormal amount of stress. She believed the Respondent played with her feelings and emotions, leaving her with self-doubt. She testified that he verbally abused her and broke many household items in the presence of the children.
[81] According to the Applicant, the Respondent also involved the children. He told O., for example, that “mommy is playing games”. This demonstrates an inability on the Respondent’s part to support the development and maintenance of the children's relationship with the Applicant.
[82] Despite the foregoing, the Applicant requests that this court make an order providing the Respondent with parenting time. This suggests that she is willing to support the development and maintenance of the children's relationship with their father. Notwithstanding, the court will not make such an order for the reasons outlined above.
[83] Following the parties’ separation in November 2018, the Applicant secured her own residence close to the Respondent’s to ensure that the children could remain in the same day care and school district.
[84] The parties soon engaged in an alternate weekend schedule wherein the Applicant sent the Respondent messages to confirm his parenting time would occur. He would often cancel.
[85] When the Applicant requested financial assistance in December 2018, the Respondent advised the Applicant that the children would live with the parent who could afford to buy them groceries and provide them with anything they needed.
[86] The Respondent’s time with the children remained inconsistent, being occasional weekends and evenings. On one occasion when he arrived to take O., he began to yell and swear at the Applicant while O. was close by. He changed his mind and left the Applicant’s home without O.
[87] From November 2018 to September 2020, the children remained in the Applicant's primary care.
[88] In mid-September 2020, the Respondent picked H. up from day care without the Applicant’s knowledge or consent. The Respondent had only picked H. up from day care a few times prior to this occasion. The Respondent text messaged the Applicant to inform her of his decision. He then sent her multiple text messages requesting that she bring O. and refused to return H. The Respondent declared that the children would stay with him full-time and only see the applicant on weekends.
[89] Later the same day, the Applicant received an email prepared by the Respondent’s stepmother attaching a separation agreement specifying that the children’s primary residence would remain with him and offering her parenting time with the children on weekends. She refused to sign this agreement and commenced an application and urgent motion.
[90] Once counsel became involved, the parties negotiated an interim without prejudice agreement regarding parenting time, a holiday schedule, child support, communication, and other corollary parenting terms.
[91] The terms of this agreement were included in a consent endorsement request which was incorporated into an order made by me in December 2020. Parties began a shared parenting regime, on a week on/week off basis with exchanges to occur Friday after school.
[92] From October 2020 to March 2021, the parties exercised the shared parenting regime. In March 2021, the Respondent “got into one of his moods” and changed his mind, suggesting he no longer wanted the children in his care.
[93] The children remained in the care of the Applicant for one month during which time the Respondent had no contact. He did not attempt to speak with the children until he changed his mind again, in April 2021.
[94] In or around April 2021, the Respondent and the paternal grandmother arrived at the Applicant’s home unannounced. The Respondent began peering into the windows of the Applicant’s home and involved her neighbours. He demanded that the children be returned to him. The Applicant felt that she had no choice but to allow him to take the children, following which they engaged in the shared parenting regime previously in place.
[95] Most recently, O. has remained in the applicant's primary care since October 11, 2022, and H. since October 14, 2022. This followed an incident that occurred while the children were in the care of the Respondent. This recent incident prompted the involvement of the Children's Aid Society of London and Middlesex and is further particularized below.
[96] The Respondent told O. to call her mother to come pick her up, which O. did. This shows that the Respondent has not demonstrated the desire or willingness to see her.
[97] While the children have spent large amounts of time with both parents, a review of their history of care reveals that the Respondent provides the children with instability and uncertainty.
[98] When the father changes his mind about his willingness to care for the children, the responsibility has always been assumed by the Applicant.
Plan of Care – s 24(3)(g) CLRA
[99] The Applicant’s most recently sworn form 35.1 affidavit outlines her plan of care for the children. This includes the children continuing their education at S.M.C. School, to have the children involved in the before and after school program, to continually care for the children with the assistance of her partner and her father, and to ensure that the children have regular contact with other family members.
[100] The Applicant is well supported by friends and family. She works full-time. She historically has, and there is no evidence to suggest that she will not continue to, support the children's educational and medical needs.
[101] The Respondent has not presented a plan of care. His form 35.1 affidavit is outdated. He has not filed a form 35.1A affidavit, which is required, considering their recent involvement with child protection services.
[102] I accept that the Applicant has a suitable plan of care for the children.
Ability and willingness to communicate and cooperate – s. 24(3)(i) CLRA
[103] The parties’ inability to communicate effectively and in a child-focused manner is outlined above.
[104] The Respondent has a history of making demands of the Applicant and unilaterally making decisions regarding parenting time and other incidents of parenting.
[105] I rely on my findings made above in relation to this factor.
Ability and willingness to meet the needs of the children – s. 24(3)(h) CLRA
[106] I have found that the Applicant has the ability and willingness to meet the needs of the children. There is no evidence to suggest that she will not continue to meet the needs of the children.
[107] In addition to my findings made above regarding the Respondent, I make the following findings as it relates to an incident that occurred shortly prior to the commencement of this trial.
[108] A child protection worker from the Children's Aid Society of London Middlesex testified in her capacity as an assessment worker. She testified that she received a call from the Applicant regarding events which arose during the Respondent’s parenting time. The child protection worker interviewed both children and the parties as part of her investigation.
[109] According to the child protection worker, the Applicant called expressing concerns after O. called asking her mother to pick her up from the Respondent’s home. O. called after the Respondent smashed her electronics, identified as being her cell phone, laptop, and PlayStation, driving them over with his vehicle.
[110] O. advised that the Respondent referred to her mother as stupid and punished her by not providing her with dinner. While O. was waiting outside for the Applicant to pick her up, she was inappropriately dressed for the weather. Further, while outdoors, O. was jumping on the trampoline and her foot went through the springs, resulting in an injury.
[111] The child protection worker further testified that the Applicant expressed concerns regarding the Respondent’s minimization of H.’s allergies, his refusal to administer medication properly while in his care, and his refusal to work with O. to complete Kumon homework.
[112] The child protection worker testified that the Applicant was concerned that the Respondent was not supportive of the children's additional activities and would not contribute to the expense or support their participation.
[113] The child protection worker testified that when interviewed, O. stated that her father “gets mad and yells.” When her father works in Toronto, his friend watches over her and H., and that friend sometimes smokes marijuana in the laundry room.
[114] When the child protection worker interviewed H., it was his belief that the Nintendo switch was not broken but he did not deny that other electronics were.
[115] The child protection worker further testified that the Respondent did not deny driving over O.’s cell phone, laptop, and PlayStation, and running them over again and again. The Respondent did so because O. advised him that she did not care about those items. He expressed dissatisfaction with the children not listening and playing their video games.
[116] The child protection worker testified the respondent was not “child centred.”
[117] She testified that the Respondent did not understand why she had contacted him. He did not understand why there was a protection concern. He advised her that the babysitter asked the children to get off their electronics and they did not. He admitted that O. was hurt on the trampoline. He denied speaking badly of the Applicant and denied smashing the electronics, but he did admit to driving over them.
[118] The Respondent advised the child protection worker that he was “ok” not having parenting time with the children. She testified that he was sarcastic when commenting that the Applicant now had to find a coach for the children’ soccer team.
[119] The Respondent chose to remove himself from the children's lives. The Applicant is seeking counselling for the children and is waiting to be provided a referral.
[120] The child protection worker advised that she was in the process of following up with community collaterals. She suggests that there are a few more pieces of the puzzle that require investigation. The file remains open.
[121] The Respondent fails to see how his pattern of coming in and out of the children’s lives is detrimental to their overall wellbeing. He also fails to acknowledge that driving over the children’s property in anger is inappropriate. His choice to feed one child dinner and not the other as a form of punishment also speaks to his inability to meet the children’s needs.
Family violence – s 24(3)(j)
[122] I rely on my findings regarding family violence made above. I have also considered the impact the family violence has on the Respondent’s ability and willingness to care for and meet the needs of the children, which I conclude is poor to none.
[123] I also consider it inappropriate to make a parenting order that would require the Respondent to cooperate with the Applicant on issues affecting the children.
[124] An order shall issue confirming the children’s primary residence with the Applicant. There shall be no order as to the Respondent’s parenting time. This is a consequence of his behaviour as a whole, including his most recent decision to remove himself from the children’s lives and his failure to attend trial.
Child Support Arrears
[125] My December 2020 order provided that the Respondent pay the Applicant child support in the amount of $600 per month based on an offset resulting from the shared parenting regime.
[126] The Applicant testified that the Respondent honoured these table support payments up to and including the end of May 2022, at which time the Respondent stopped paying support. I accept this undisputed evidence.
[127] The Applicant entered as evidence at trial a child support arrears chart setting out the Respondent’s obligations for table support.[^9]
[128] The table child support arrears chart sets out the Respondent’s obligations to pay support based on the only up-to-date income information available, being his 2020 income of $81,781.
[129] For the period of June 1, 2022 up to and including October 15, 2022, at which time the parties continued to have a shared parenting regime, the Respondent owes to the Applicant the sum of $2,511.
[130] From October 16, 2022, to October 31, 2022, using the Respondent’s 2020 income, based on the children being in the Applicant's primary care, the Respondent owes to the Applicant $618.50.
[131] Therefore, the total amount of table child support arrears for the period of June 1, 2022, to October 31, 2022, is $3,129.50. An order shall so issue.
[132] My December 2020 court order did not address the issue of proportionate sharing of s. 7 expenses.
[133] The Applicant testified, and I accept, that she incurred several expenses relating to the children, including daycare expenses, before and after school expenses, dental expenses, optometry expenses, medication for allergies and asthma, and prescriptions.
[134] The Applicant submits that childcare expenses incurred when the children were in her care were necessary for her to be able to work. Similarly, camp expenses incurred while the children were in her care were also necessary for her to continue with her employment.
[135] The Applicant submits that dental expenses, optometry expenses including a dental extraction, prescription cream and medication, and orthotics expenses were required for the appropriate care of the children and are necessary. She claims that the Respondent was aware of these expenses as they had discussions as to why they were needed and important. This equally applies to the educational expense incurred for Kumon tutoring.
[136] The Applicant tendered as evidence a special expense arrears chart.[^10] This chart details the dates expenses were incurred, the type of expense, the Respondent’s proportionate share, the total amount paid by her, and the amount owed from the Respondent.
[137] Attached to the chart are the receipts for the expenses incurred or proof that those expenses have been paid by the attachment of bank statements.
[138] The Applicant also tendered as evidence her 2021 Income Tax Return revealing her total income of $46,034.[^11]
[139] She requests that her union dues in the amount of $722 be reduced from her income for support purposes. She supplied the court with several DivorceMate Software calculations setting out each of the parties’ income and their respective child support obligations based on a shared parenting regime and with the children in her care.[^12]
[140] I accept the unchallenged evidence of the Applicant.
[141] I find that the total amount of s. 7 arrears owing by the Respondent, up to and including October 31, 2022, to be about $3,370.14. An order shall so issue.
Ongoing Child Support
[142] Given that the children are in the sole care and control of the Applicant, the Respondent must pay support under s. 3 of the Child Support Guidelines, O Reg 391/97.
[143] The Respondent has failed to file up-to-date income information. The most recent financial statement on record from the Respondent dates to January 29, 2021. In this financial statement, at part 1, paragraph 4, the Respondent states incomes per his 2019 Notice of Assessment to be $70,960. The financial statement sets out that the Respondent was having issues accessing his 2017 and 2018 Income Tax Returns and Notices of Assessment, and that they would be provided upon receipt. It does not appear that they were provided.
[144] The Respondent’s January 29, 2021 financial statement sets out a total annual income, at line 13 on page 3, of $85,440.
[145] The Respondent’s 2020 Income Tax Return reveals line 150 income of $82,042.31 and union dues are noted to be in the amount of $261. The Applicant requests this court set the Respondent’s child support obligations based on his 2020 annual income of $82,042 less union dues of $261, requiring him to pay support for the benefit of the two children in the amount of $1,237 per month.
[146] The request is reasonable and in line with the Child Support Guidelines. Accordingly, an order shall so issue.
[147] The Applicant also requests, for ongoing s. 7 expenses, that they include medical and dental costs not covered by health benefits or insurance, childcare including summer camp and before and after school, educational expenses including tutoring and/or Kumon, and postsecondary expenses.
[148] Most of these expenses were incurred previously and the Applicant suggests that the Respondent was aware of them. I accept her evidence and find that her request regarding the s. 7 expenses to be appropriate in the circumstances.
Other incidental orders requested
[149] In her draft order submitted during the trial, the Applicant seeks various incidental parenting orders which focused mainly on communication. These clauses are both reasonable and necessary based on the evidence before the court. If followed, and the expectation is that they will be, they can only serve the children's best interest by minimising any potential conflict that they may be exposed to.
[150] The Applicant also seek standard clauses with respect to name change, vacation travel, relocation, and passports. These clauses are appropriate, necessary, consistent with the children's best interest, and will serve to reduce confusion on these issues, potentially reducing the parties’ return to court to seek clarification. Those orders shall issue in accordance with s. 28(c) of the CLRA.
Conclusions and Orders
Pursuant to the Children’s Law Reform Act, this court orders that:
The Applicant, Michaela Anne Wong, shall have sole decision-making responsibility for the children, namely O., born March, and H., born June.
The children, namely O., born March, and H., born June, shall primarily reside with the Applicant, Michaela Anne Wong.
Pursuant to the Family Law Act, this court orders that:
Commencing November 1, 2022, and on the first of each month thereafter, the Respondent, Edward Raymond Thompson, shall pay child support for the children, namely O., born March, and H., born June, in the amount of $1,237.00 based on the Respondent’s 2020 annual income of $82,042.00, less union dues of $261.00, and pursuant to the Child Support Guidelines.
The Respondent, Edward Raymond Thompson, shall pay retroactive child support to the Applicant, Michaela Anne Wong, for the period of June 1, 2022, to October 31, 2022, in the amount of $3,129.50.
The Respondent, Edward Raymond Thompson, shall pay to the Applicant, Michaela Anne Wong, his proportionate contribution of 64.3% of the children’s section 7 expenses, based on his 2020 income of $82,042.00, less union dues of $261.00, and the Applicant’s 2021 income of $46,034.00, less union dues of $722.00.8.
The children’s ongoing and future section 7 expenses shall include:
a) Medical and dental costs not covered by health benefits or insurance,
b) Childcare including summer camp and before and after school care,
c) Educational expenses including tutoring and/or Kumon, and
d) Postsecondary expenses.
- The Respondent, Edward Raymond Thompson, shall pay retroactive special expenses up to and including October 31, 2022, to the Applicant, Michaela Anne Wong in the total amount of $3,370.14, which is broken down as follows:
a) Childcare expenses in the amount of $1,292.32;
b) Medical expenses in the amount of $1,480.73;
c) Camp expenses in the amount of $516.71; and
d) Educational expenses in the amount of $80.38.
Commencing May 31, 2023 and by each May 31st of each year thereafter, the Applicant, Michaela Anne Wong and the Respondent, Edward Raymond Thompson, shall exchange their Income Tax Returns and Notices of Assessment from the previous taxation year and such further financial disclosure as required by section 25 of the Child Support Guidelines.
The parties shall re-adjust table child support and section 7 expenses yearly with the adjustment occurring on July 1st and going forward to the following June 30th.
If the Respondent, Edward Raymond Thompson, has extended health benefits available to him through his employment, he shall maintain these extended health benefits available to him for the benefit of the children, namely O., born March, and H., born June, as long as the benefits are available to him and for as long as the children are eligible to receive the same.
This court further orders that:
The parties shall refrain from making disparaging or negative remarks to the children about the other parent and refrain from discussing with the children the legal proceedings.
The parties shall both refrain from discussing with the children or with a third party in the presence of the children present or past legal proceedings, issues between the parties in any such legal proceedings, and/or conflicts between the parties.
The parties shall communicate with each other through the parenting communication application, Talking Parents, unless there is an emergency.
Any communication between the parties shall be limited to discussing the children only and shall be brief, informative, respectful, factual, and friendly.
Any discussions regarding parenting issues shall be communicated between the parents and shall not involve third parties or the children.
The Applicant shall obtain passports for the children. The passports shall remain in the care of the Applicant but shall be provided temporarily to the Respondent when reasonably necessary.
If either party plans a vacation with the children (with "vacation" defined as any interprovincial travel, international travel, or a trip within the province of Ontario lasting more the 72 hours), that party will give the other a detailed itinerary at least 30 days before it begins, including the name of any flight carrier, and flight times, and/or train details, accommodation information, including address and telephone numbers, and details as to how to contact the children during the trip. If a notarized letter/consent is required for traveling, upon receipt of the itinerary as noted above, the other party will provide a notarized letter/consent authorizing that party to travel with the children. The cost of the notarized letter shall be borne by the party traveling with the children.
If either parent plans a vacation without the children, that parent will give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that parent. If cell service is interrupted by the vacation, an alternative phone number or method of contact shall be provided.
Neither party shall move their residence from the County of Middlesex without first providing 60 days written notice and obtaining the other’s written consent or a court order.
Neither party shall change any of the names of the children, namely O., born March, and H., born June, pursuant to the Change of Name Act, Vital Statistics Act, by common usage, or by enrolling the children in school, day care, or extracurricular activities under a different name, and this provision shall be deemed a bar to any application that may be filed with, and shall be binding upon, any officer of the office of the Registrar General appointed under the Vital Statistics Act, who receives such application by either party in contravention of this provision.
Unless this Order is withdrawn from the Director’s Office at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the recipient. Where sufficient deductions are not being made by support deduction Order, payments may be remitted to the Director of the Family Responsibility Office.
For as long as child support is paid, the payor (and recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
Costs
[151] If the Applicant seeks costs, she may submit brief written submissions, no more than three pages, typed in double space, excluding offers to settle and a cost outline, on or before December 2, 2022.
[152] The Respondent shall have up to December 9, 2022, to file his response to the Applicant's costs of submissions. His submissions shall not exceed two pages, typed in double space, excluding offers to settle and a cost outline.
[153] If no submissions are received in accordance with the timelines set out above, it will be presumed that costs have been settled or one party chose not to file submissions.
“Justice Kiran Sah”
Justice Kiran Sah
Date: November 23, 2022
[^1]: See the Applicant’s Form 35.1 Affidavit dated October 24, 2022. [^2]: Ibid. [^3]: See Exhibit 10. [^4]: See Exhibit 7. [^5]: See Exhibit 6. [^6]: See Exhibit 9. [^7]: See Exhibit 8. [^8]: See Exhibit 1. [^9]: See Exhibit 16. [^10]: See Exhibit 18. [^11]: See Exhibit 12. [^12]: See Exhibits 14 and 15.